The evolution of European Union criminal law (1957-2012)

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3.3 Imprisonment and alternative sanctions After the EEW, mutual recognition was further expanded to the domains of enforcement and supervision of pre-trial detention, custodial sentences, probation and alternative sanctions. The principle continued to be largely focused on securing and managing punishment. However, these measures introduced a new gist to mutual recognition in criminal matters as ideas of rehabilitation and reintegration of prisoners began to surface in this new wave of measures. Furthermore, as mutual recognition further ventures into yet other fields of criminal justice, it suffers significant blows to its initial logic as it allows States to fully reintroduce the test of dual criminality in relation to all offences. 3.3.1 Pre-trial measures In relation to pre-trial detention a Framework Decision on supervision measures as an alternative to provisional detention was adopted in 2009. 833 The Framework Decision lays down the rules according to which one Member State recognises a decision on supervision measures issued in another Member State as an alternative to provisional detention, how it monitors the supervision of the measure and surrenders the person concerned again when the supervision is breached. 834 Member States are thus required to recognise and apply six supervision measures: obligation of the person to inform the competent authorities of any change of residence; obligation not to enter certain localities, places or areas; obligation to remain at a certain place; limitations on leaving the territory of the executing State; obligation to report at certain times to a specific authority; obligation to avoid contact with certain people. Besides this list, Member States may choose to also make themselves available to monitor five other types of measures (which vary from obligation not to a drive a vehicle to obligation to undergo therapeutic treatment or treatment for addiction). 835 The list of grounds for refusal is largely maintained (certificate incomplete or inexistent, lack of required consents, ne bis in idem, dual criminality when applicable, statute barred offences, immunity or the person being too young). 836 Again, recognition is expected to be swift, 833 Council Framework Decision 2009/829/JHA, supra note 534. The date for implementation of the Framework Decision is 1 December 2012, Article 27, ibid.. 834 Article 1, ibid.. 835 Article 8 (1) and (2) ibid.. 836 Article 15, ibid.. 222
“The competent authorities in the executing State shall, as soon as possible and in any case within 20 working days of receipt of the decision on supervision measures and certificate, recognise the decision on supervision measures forwarded… and without delay take all necessary measures for monitoring the supervision measures…”. 837 Regardless of these obligations, the executing State receives considerably more room to act than in any other mutual recognition instruments thus far, in what is a clear slowing down of the processes of mutual recognition. Indeed, dual criminality becomes fully optional in relation to any criminality – i.e. even in relation to the listed 32 serious criminal offence types. In fact, although the Framework Decision retains the same format as all others adopted thus far – hence providing for a special regime for the listed 32 types of offences in case they are punishable by deprivation of liberty of at least three years – it also states that, “Member States may, for constitutional reasons… declare that they will not apply paragraph 1 in respect to some or all offences referred to in that paragraph.” 838 Pre trial detention has for long been a thorny issue in many criminal justice systems, both because of long detention periods and because of the disproportionate numbers of non nationals in pre-trial detention. Detention periods in many countries can be very long: although the average length of pre-trial detention in Member States is 5.5 months this disguises the extremely long periods in countries such as, for example Latvia, Greece or Hungary where the average is one year. 839 In fact, countries such as Latvia or Spain stipulate that pre-trial detention can go up to 4 years, whilst Sweden does not have a maximum period at all. 840 Furthermore, in EU Member States, there is a disproportionately high rate of incarceration of non-nationals, many of whom are in pre- 837 Article 12, ibid.. 838 Article 14 (4), ibid.. 839 See Table 3.2 in Commission’s Staff Working Document accompanying docuemtnto the Proposal for a Council Framework Decision on the European supervision order in pre-trial procedures between Member States of the European Union, COM (2006)468 final, Impact Assesment, Brussels, 29 August 2006, 10-11. 840 Fair Trials International Report, “Detained without trial: Fair Trials International’s response to the European Commission’s Green Paper on detention”, October 2011, 28. In Sweden however, if no action towards conditional release is taken within 14 days of detention a new remand hearing is required, ibid.., 28. 223
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The London School of Economics and
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Abstract This thesis addresses the
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However, the journey of writing thi
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3. The scope of intervention: the e
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4. The emergence and development of
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Introduction: The nature of Europea
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This dissertation seeks to advance
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account as a reference. Indeed, sev
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Whilst the distinctive criteria of
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it makes sense to consider the doma
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creation of summary offences tried
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want to be talking about a simple a
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contemporary societies that primari
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influence on Member States to intro
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But what defines these Euro-crimes
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significantly broader range of crim
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legal orders that punish more sever
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enforcement agencies were keen to e
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framed. 98 The principle of direct
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obligations were further confirmed
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Moreover, other realms of interacti
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Hence, the Court, whilst recognisin
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for some understanding of the first
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“The Commission’s efforts and i
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trafficking), and especially about
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The central actors in the Trevi fra
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justice and home affairs matters un
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Likewise, the Programme of Action t
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means to repatriate third country n
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“Each Member State shall take app
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“For that purpose, whilst the cho
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limiting national criminal law, it
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“…synthesis of the arrangements
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of Action relating to the reinforce
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the single market and the consequen
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Rather limited in scope and depth,
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The need for more openness in the w
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not subject to control or enforceme
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the individual. The building of a m
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Initiatives ranged from the creatio
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etween police forces in matters of
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evenue. 298 Along the same lines, t
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identified in the TEU(M) It was see
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esponsible for the formalisation of
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Indeed, already in 1996, organised
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Finally, besides the political and
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particularly those initiatives that
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and drug trafficking, hence giving
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trade. 356 The Court continued by n
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well as the first protocol. 366 The
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crime is a fluid concept, with loos
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means of transport, telecommunicati
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Chapter 3 The evolution of European
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1. Treaty of Amsterdam: expansion a
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positions would be suited to define
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The author noted how it was adopted
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2. The new scope of European Union
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these political declarations, which
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thirty years and epitomises and imp
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phenomenon and of the multifaceted
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within the scope of instruments alr
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Furthermore, the criminalisation of
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interests (in this case the single
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More notably, the most significant
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The Court decided with the Commissi
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Regardless of the Court having plac
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in particular fields, thus solidify
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However, competence to enact legisl
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months) to third-country national v
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derogations); 525 others proposed f
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ecognition of national sentences, p
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2. The features of the new supranat
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criminal matters and, if necessary,
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with a cross border dimension. Ther
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question of ‘why criminal law’,
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e affected by ECL law. 562 This dec
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Chapter 4 Harmonisation of national
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Harmonisation was felt to be necess
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matters. Indeed, the European Union
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This provision portrays a criminal
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“a structured group of three or m
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development is in line with the rea
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economic loss; (e) seizure of aircr
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Framework Decision, which obliged t
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possession, among others. 630 A stu
Page 171 and 172: Again, the EU’s provision was bro
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Page 175 and 176: 3.2. A focus on minimum maximum pen
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Page 179 and 180: of ensuring a degree of homogeneity
Page 181 and 182: Framework Decision on trafficking i
Page 183 and 184: inging about a harsher criminal law
Page 185 and 186: extraterritoriality to nothing less
Page 187 and 188: development of the single market -
Page 189 and 190: “(… )involves the recognition o
Page 191 and 192: These changes in extradition across
Page 193 and 194: arguments against extradition of na
Page 195 and 196: To be sure, concerns with fundament
Page 197 and 198: text of the preamble does not amoun
Page 199 and 200: States should not have to use their
Page 201 and 202: e partly explained by the fact that
Page 203 and 204: “Confidence in the application of
Page 205 and 206: 2007, Polish authorities requested
Page 207 and 208: With these judgements, the Court st
Page 209 and 210: does not deem the acts in question
Page 211 and 212: discretion in Title VI TEU(A), one
Page 213 and 214: Such reasoning led the Court to con
Page 215 and 216: was committed by a national abroad
Page 217 and 218: Furthermore, the list of types of o
Page 219 and 220: “without any further formality be
Page 221: An EEW can only be issued with the
Page 225 and 226: prisoners with the view of ‘facil
Page 227 and 228: The preamble explains this choice b
Page 229 and 230: 3.3.3 Probation and alternative san
Page 231 and 232: prosecuted elsewhere in the EU. Rat
Page 233 and 234: of drugs between two Schengen count
Page 235 and 236: definitely bar further prosecution
Page 237 and 238: Conclusion The introduction and dev
Page 239 and 240: Chapter 6 Conclusion: Towards a Eur
Page 241 and 242: Measures adopted along these narrat
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Page 245 and 246: persons acting together; in the fra
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Page 249 and 250: preceding any legislative proposal,
Page 251 and 252: suggests that mutual recognition wi
Page 253 and 254: clear in relation to the EAW. In fa
Page 255 and 256: It is beyond the scope of this thes
Page 257 and 258: Furthermore, Article 6 TEU(L) confe
Page 259 and 260: that may endanger his or her life,
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Page 263 and 264: penal values in the future. Similar
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Page 267 and 268: as how long the individual concerne
Page 269 and 270: 6. A renewed challenge for coherenc
Page 271 and 272: Bibliography Books and articles Aba
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Deen-Racsmany, D., “The European
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Hinarejos, A., Spencer, J.R., and P
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Xanthaki (eds) Towards a European C
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Szymanski, J., “Discretionary Pow
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Legislation and other sources by ty
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Council Directive 91/477/EEC of 18
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Joint Action 96/602/ JHA of 14 Dece
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Proposals Portuguese Republic, Init
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supervision order in pre-trial proc
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Council Doc. 9067/06 on the Proposa
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Case C-186/98 Criminal proceedings
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Agreement on the Application betwee
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Websites and links http://www.eurow
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